Positive Nullification: From Legal Pot, Gay Marriage and the Right to Farm, States are Asserting Rights

Frank Cagle

9:42 AM, Sep 11, 2013

Gay marriage. Legalized pot. The farm-to-table movement.

It's time progressives joined conservatives to preach the virtues of the 10th Amendment.

When we 10th Amendment fans talk about states' rights and state sovereignty, progressives accuse us of wanting to secede from the union. I'm sure you can find some yahoo who would advocate secession—you can find a whack-brain for every position.

But if you believe that the powers not enumerated in the Constitution are left to the states, you have to be heartened by some recent developments. And you should cheer if you think states are the laboratories of our democracy.

And progressives need to come over to our side.

When Washington and Colorado legalized marijuana, they were practicing nullification. The end result is the federal government declining to enforce federal laws governing marijuana in those states.

Kentucky has legalized the growing of hemp to make products for business and industry. It is not illegal to possess hemp, as long as you import it from China. It has a lot of useful purposes—making ropes and clothing, for example. It does not get you high like its pot cousin.

By what authority does the federal government have the right to prevent a farmer from growing hemp as a cash crop? The Kentucky legalization will likely wind up in court, should the feds decide to enforce it. But if they don't intend to enforce marijuana laws in Colorado, are they going to put Kentucky hemp farmers in jail?

The Internet is full of stories about federal SWAT teams raiding family farms because of direct sales to consumers, especially sales of raw milk and cheese. They sometimes confiscate the organic vegetable crop as well.

When state after state legalized gay marriage, they set up a confrontation with the federal Defense of Marriage Act, which defined marriage as only between a man and a woman. The U.S. Supreme Court rightly ruled that marriage is a state matter and that the federal government's attempt to dictate to the states was unconstitutional.

James Madison, the principal author of the Constitution, argued against states being able to nullify federal law during the fight with South Carolina over tariffs in the 1830s. But what is often overlooked is that he argued that states cannot nullify a constitutional federal law.

Washington and Colorado voters essentially asked what constitutional authority the federal government has to regulate marijuana use in their states. It will be up to the Supreme Court to decide whether there is a larger constitutional issue involved.

No, contrary to what some conservatives believe, states cannot nullify a constitutional federal edict. And they can't decide on their own whether a law is constitutional or not—it is still up to the Supreme Court. But they can test federal power and ask for a ruling.

Some conservatives are outraged, of course, about legalized marijuana and gay marriage. It is easy to forget your conservative principles when the shoe is on the other foot.

By what right does the federal government regulate a farmer growing crops and selling said crops directly to local consumers? If states want to encourage the farm-to-table movement, the federal government needs to butt out.

We are establishing a two-tiered farm-to-market system. Let agribusiness feed the world with genetically modified corn, but we need to establish another market for people who want locally produced, healthy foods. The USDA ought to be helping us do it instead of being a hindrance.

If a product is produced inside a state's borders, sold there, consumed there, and is legal under state law, in what way is it interstate commerce? The government has been arguing that actions within a state have an impact on national markets and thus affects interstate commerce. It is a slim reed.

Let's have federal SWAT teams chase terrorists instead of participating in terrorism against its farmers.